New Mexico’s Children’s Law Institute Conference Call for Presentations

Kate Fort

2019 Call for Workshop Proposals

I was just asked to speak at this event, and they also forwarded the call for presentations. So submit something, and we can hang out while we educate!

We are looking for 1.5 hour long workshops that relate to child welfare, juvenile justice, service providers, advocates, educators, and legal professionals in those systems. Workshops can be geared toward one or more professions. We are seeking intermediate and advanced presentations for experienced professionals and volunteers. Academic paper proposals are not likely to be accepted.

The New Mexico Children’s Law Institute (CLI) is seeking proposals for inspirational, skill building, and solution focused workshops for the 26th annual conference in Albuquerque, New Mexico, January 9-11, 2019.

Deadline for proposal submission is August 17, 2018

 

More Comments Needed! Now on Title IV-E/Families First Developments

Kate Fort

Here. DUE JULY 22.

This one is arguably a little more complicated than usual, but also not inherently nefarious. Here’s a very quick overview (with thanks to Jack Trope for his recent presentation up at Grand Traverse Band for all the info).

In somewhat of a surprise development, Congress passed an overhaul to Title IV-E a few months ago. Title IV-E is the reimbursement program for foster care funding. Until this change, called Families First, the funding was triggered both by the removal of the child, and by the family’s income qualification.

Families First does two things–it releases funding for children who are “candidates” for foster care and removes the income qualification for services for those children and families. Allowable pre-removal services include “evidence-based”:

1. Mental health prevention and treatment services
2. Substance abuse prevention and treatment
3. In-home parenting-skill based programs

“Evidence based” Services and programs must be “trauma-informed” and “promising”, “supported”, or “well-supported” practices. HHS is to release practice criteria and pre-approved programs. There are long definitions in the quotes above, but basically:

Promising: one study with a control group
Supported: one study with random control or quasi-experimental
Well-supported: is at least two studies that used a random control or quasi-experimental trial

Finally, HHS must allow programs and services adapted to culture and context of a tribal community. No one really knows how this provision will interact with the evidence based provision above. This call for comments “solicits comments by July 22, 2018 on initial criteria and potential candidate programs and services for review in a Clearinghouse of evidence-based practices in accordance with the Family First Prevention Services Act of 2018.”

The HHS approved list of programs (“Clearinghouse”) will be automatically eligible for the funding. So! If you are provider who knows about such evidence-based practices for tribal youth and families, TELL HHS! Alternatively, if you work for a tribe, you might ask about how tribal consultation will fit into this process.

This may also be a partial game changer for tribes on the fence about doing direct IV-E funding with the federal government. The planning grant for that process should pop up again in the spring.

Judge Byrne’s Essay on Family Separation in Time

Kate Fort

Here.

Judge Byrne has been a leader at NCJFCJ, an ally to tribal judges through NAICJA, and a strong proponent and supporter of ICWA. She’s also a state court judge in Texas.

Pipeline to Law Workshop at ASU

Neoshia Roemer

Pipeline to Law Workshop at ASU

August 1-5, 2018

Beus Center for Law and Society

111 E. Taylor Street, Phoenix, AZ

 

The Native American Pipeline to Law Pre-Law programs educate and help students successfully navigate the law school application process. The workshops will assist participants in preparing competitive applications. Come learn how to successfully apply to law school and network with law school professionals.

 

Who should attend?

College Sophomores, Juniors/Seniors, master’s students and college graduates preparing for law school.

 

Why attend?

  • Learn about law school and career options
  • Obtain information about the varied admissions criteria
  • Work with mentors to develop an effective application, resume, and personal statement
  • Explore law school funding options
  • Receive test prep tips for the LSAT
  • Network with other participants, faculty, and professionals
  • Hear from former and current American Indian law students

 

Application and additional information available at:

law.asu.edu/pipelinetolaw

 

Questions? Contact Kate Rosier at Kate.Rosier@asu.edu

 

1BBBD76B-01BA-40BC-87BD-92E5F5F0EC4F

Shoshone-Bannock Tribes Bring Land Claim

Matthew L.M. Fletcher

Here is the complaint in Shoshone-Bannock Tribes of the Fort Hall Reservation v. United States (D. Idaho):

1 Complaint

An excerpt:

By this action the Tribes seek to resolve unsettled rights to land that has been abandoned or relinquished by the Union Pacific Railroad (UPR) in Pocatello, Idaho. The Tribes want to protect Tribal interests and remove a long-standing obstacle to prudent land use in the community.

National Indian Law Library Bulletin (6/22/2018)

Matthew L.M. Fletcher

Here:

The National Indian Law Library added new content to the Indian Law Bulletins on 6/22/18.

U.S. Supreme Court Bulletin
http://www.narf.org/nill/bulletins/sct/2017-2018update.html
Read the latest Tribal Supreme Court Project update published on 6/20/18.

Law Review & Bar Journal Bulletin
http://www.narf.org/nill/bulletins/lawreviews/2018.html

  • Through a Federal Habeas Corpus glass, darkly- Who is entitled to effective assistance of counsel in tribal court under ICRA and how will we know if they got it?
  • Tribal sovereignty and the recognition power.
  • Twenty-five years later: The amendments to the National Historic Preservation Act and Tribal Consultation.
  • Foreign-Trade zones in Indian Country: Is a foreign-trade zone right for your tribe?
  • Silence is anything but golden: Laws of general applicability in Indian Country.
  • Alvarez v. Lopez: The Ninth Circuit overextends Congress’s intended use of plenary powers with its interpretation of the ICRA jury provision.
  • Lessons from relocations past: Climate change, tribes, and the need for pragmatism in community relocation planning.
  • Water exchanges: Arizona’s most recent innovation in Water Law and Policy.
  • Ensuring Arizona’s future today: The Lower Basin Drought Contingency Plan and its implementation in Arizona.
  • Overcoming constitutional obstacles to the resolution of general stream adjudications.
  • Retail Canyon: The failure of Environmental Law within an American treasure.
  • The ubiquitous ubiety of Native American Law.
  • An overview of practicing American Indian Criminal Law in Federal, State, and Tribal Courts, and an update about recent expansion of criminal jurisdiction over non-Indians.
  • Data sovereignty and the Tribal Law and Order Act.
  • The effect of state marijuana legalization on tribes: One tribe’s unexpected journey.
  • A former tribal leader’s thoughts on serving tribal clients.
  • NHPA 106 Consultation: A primer for tribal advocates.
  • Conquering injustice: An analysis of sexual violence in Indian Country and the Oliphant gap in tribal jurisdiction.
  • Patchak v. Zinke (16-498).
  • The National Historic Preservation Act: An inadequate attempt to protect the cultural and religious sites of Native nations.
  • Why try to change me now?: The basis for the 2016 Indian Child Welfare Act Regulations.
  • Highway culverts, salmon runs, and the Stevens Treaties: A century of litigating Pacific Northwest Tribal Fishing Rights.
  • Do borders make a difference behind bars? The scope of prisoners’ free exercise of religion protection in Canada and the United States.
  • A view from American courts: The year in Indian Law 2017.
  • Resources for relocation: In search of a coherent Federal policy on resettling climate-vulnerable communities.
  • Implementing the Federal Trust Responsibility to Indians after President Nixon’s 1970 message to Congress on Indian Affairs: Reminiscences of Reid Peyton Chambers.
  • The State, the Tribe, and the ugly: The Ninth Circuit stakes a bad claim on Indian Land for tribal civil jurisdiction over nonmembers in Window Rock Unified School District v. Reeves.

Federal Courts Bulletin
http://www.narf.org/nill/bulletins/federal/2018.html
Chinook Indian Nation v. Zinke (Federal Recognition)

State Courts Bulletin
http://www.narf.org/nill/bulletins/state/2018.html
In re C.A. (Indian Child Welfare Act – Application of)

News Bulletin
http://www.narf.org/nill/bulletins/news/currentnews.html
In the Land & Water section, we feature a couple of articles relating to an effort to nullify a tribal water rights settlement deal.

U.S. Legislation Bulletin
http://www.narf.org/nill/bulletins/legislation/115_uslegislation.html
The following bill was added:
H.R.6124: To amend Title II of the Social Security Act to authorize voluntary agreements for coverage of Indian tribal council members, and for other purposes.

Federal Court Declines to Suppress Statement Made by Habitual D.V. Defendant Represented by Tribal Lay Advocate

Matthew L.M. Fletcher1 Comment

Here are the materials in United States v. Freemont (D. Neb.):

45 motion to suppress

46 response

58 magistrate report

59 objection

63 dct order

Guest Post: Kirsten Matoy Carlson on Eighth Circuit Judge Diana Murphy

Matthew L.M. Fletcher1 Comment

In Remembrance: Judge Diana Murphy

Last month, Indian country lost a powerful advocate and friend, the Honorable Diana E. Murphy of the U.S. Court of Appeals for the Eighth Circuit. Judge Murphy was the first woman appointed to the Court of Appeals for the Eighth Circuit, and she remained the only women on the court for decades. Unlike many federal appellate judges, she served as a district court judge for over a decade before joining the Court of Appeals.

During her thirty-plus years on the federal bench, Judge Murphy heard almost 50 cases and wrote close to two dozen opinions related to federal Indian law. Her majority, concurring, and dissenting opinions covered a wide range of topics, including, inter alia, land-into-trust, taxation, gaming, tribal civil adjudicatory jurisdiction, tribal sovereign immunity, treaty rights, reservation boundaries, and criminal jurisdiction. Her Indian law jurisprudence reflected her remarkable ability to tackle complicated factual and historical patterns, to read closely and identify the relevant facts in their historical context, to apply the law precisely to those facts, and to value and give voice to cultures and ways of life distinct from her own. She was one of those rare federal judges who recognized Indian nations and their people for what they are: sovereign governments with distinctive cultures and ways of life.

Among Judge Murphy’s well known majority opinions are:

Mille Lacs Band of Chippewa Indians v. Minnesota Dep’t of Natural Resources, 861 F. Supp. 784 (Dist. Minn. 1994) — 861_f.supp._784

Gaming Corp. of Am. v. Dorsey & Whitney, 88 F.3d 536 (8th Cir. 1996) — 88_f.3d_536

United States v. Brown, 777 F.3d 1025 (8th Cir. 2015) — 777_f.3d_1025

County of Charles Mix v. United States DOI, 674 F.3d 898 (8th Cir. 2015) — 674_f.3d_898

Hornell Brewing Co. v. Rosebud Sioux Tribal Court, 133 F.3d 1087 (8th Cir. 1998) — 133_f.3d_1087

Leech Lake Band of Chippewa Indians v. Cass County, 108 F.3d 820 (8th Cir. 1997) — 108_f.3d_820

Yankton Sioux Tribe v. Podhradsky, 577 F.3d 951 (8th Cir. 2009) — 577_f.3d_951

Gaming World Int’l v. White Earth Band of Chippewa Indians, 317 F.3d 840 (8th Cir. 2003) — 317_f.3d_840

United States v. Santee Sioux Tribe, 254 F.3d 728 (8th Cir. 2001) — 254_f.3d_728

United States v. Santee Sioux Tribe of Neb., 324 F.3d 607 (8th Cir. 2003) — 324_f.3d_607

Bettor Racing, Inc. v. Nat’l Indian Gaming Comm’n, 812 F.3d 648 (8th Cir. 2016) — 812_f.3d_648

City of Duluth v. Fond Du Lac Band of Lake Superior Chippewa, 785 F.3d 1207 (8th Cir. 2015) — 785_f.3d_1207

United States ex rel. Bernard v. Casino Magic Corp., 384 F.3d 510 (8th Cir. 2004) — 384_f.3d_510

Plains Commerce Bank v. Long Family Land & Cattle Co., 491 F.3d 878 (8th Cir. 2007) — 491_f.3d_878

Attorney’s Process & Investigation Servs. v. Sac & Fox Tribe, 609 F.3d 927 (8th Cir. 2010) — 609_f.3d_927

DISH Network Serv. L.L.C. v. Laducer, 725 F.3d 877 (8th Cir. 2013) — 725_f.3d_877

Judge Murphy also wrote several powerful concurrences and dissents, including:

Nord v. Kelly, 520 F.3d 848 (8th Cir. 2008) (concurrence) — 520_f.3d_848

Fond Du Lac Band of Lake Superior Chippewa v. Frans, 649 F.3d 849 (8th Cir. 2011) (dissent) — 649_f.3d_849

South Dakota v. United States DOI, 69 F.3d 878 (8th Cir. 1995) (dissent) — 69_f.3d_878

 

Grant Christensen on Predicting Supreme Court Behavior in Indian Law Cases

Matthew L.M. Fletcher

Grant Christensen has posted his paper, “Predicting Supreme Court Behavior in Indian Law Cases,” on SSRN.

Here is the abstract:

Since 1959 the Supreme Court has heard an average of 2.6 Indian law cases each term out of a recent average of approximately 80 cases. This paper attempts to identify which factors may be influencing the outcome of Indian law opinions by creating a new dataset of 156 Indian law cases and testing twelve potentially explanatory variables using logistic regression analysis.

Unexpectedly, the paper concludes that Chief Justice may play a determinative role in Indian law opinions – exceeding the importance of the office in most other analysis of the Court. This is true even though the Chief Justice has changed four time over the course of the study, indicating that it is the office of Chief Justice, and not the individual holding the office, that has the observed effect.

Overall the logistic regression model was able to explain more than 70% of the variance in the outcome of Indian law opinions, indicating that the independent variables provided a robust survey of the problem. In addition to the role of the Chief Justice, other important variables when it comes to explaining the Supreme Court’s behavior on Indian law questions include whether the tribe was the appellant, whether the case was decided by a single vote, whether a jurisdictional dispute between a state and tribe was at the center of the controversy and whether the case arose from Alaska or Hawaii.